Sir Garfield Barwick is also the man whose words will go down in history for having implicated
the Commonwealth Government in the removalist policy colloquially known as 'forced adoption'.
Firstly, (the Commonwealth) cannot absolve itself of all responsibility for the system under which
adoption took place. In Chapter 7, an exchange involving the Commonwealth Attorney General was quoted. This exchange encapsulated
his own view but implicitly also the choice, made by the Commonwealth, not to make readily available to unmarried women those
Commonwealth social security benefits extended to other mothers (Para. 9: 53):
HON C. ROWE [New South Wales]: I think all this is tied up with not getting the mother's consent too
soon and allowing her time to really make up her mind about what she wants to do. SIR GARFIELD BARWICK [Commonwealth]: If
you leave the child with the young mother too long, it builds itself into the affections of a person who has no chance of
looking after it. HON. C. ROWE: That mother has prior right morally and legally, and I think we should leave it that way.
SIR GARFIELD BARWICK: Everything but the economic ability to look after it. HON C. ROWE: But I think we must recognise the
rights of the natural mother in these matters. HON. H.W. NOBLE [Queensland]: I think the interests of the child are the
first thing to be considered... HON C. ROWE: I would agree on general principles that the interests of the child should be
important, but I hate taking away a mother's rights completely too quickly. HON. F.H. HAWKINS: But you do not take them away.
She gives them away. It is a question of whether you let her take them back. THE CHAIRMAN [Victoria's Attorney-General Hon.
A.G. Rylah]: That is so. She gives them away at a time when, I think it is fair to say, many mothers are not quite capable
of bringing sound judgment to bear on the matter (Para. 7:55).
Significantly, the Final Report of the 2012
Inquiry confirmed that the primary objective of 20th century adoption legislation was to legalize child abandonment:
Australia, adoption law is entirely the product of legislation: the common law did not allow parents to voluntarily relinquish
guardianship and custody rights during their lifetimes. Accordingly, there are
Acts, Regulations, policies and practices for each Australian jurisdiction.
In 1925, a South Australian newspaper article
reported ‘proposals of the Government in the way of legislation concerning the adoption of children’, noting that:
the English law there was no power which prevented a parent from having the control and custody of a child. In many countries
Parliament hesitated to take away that natural power, even although the parent was agreeable to the transaction. The object
of the Bill was to give to persons who adopted children a legal status as regarded such children... Under the common law the
rights of the parent to the custody of the child continued undiminished, notwithstanding that he might have entered into the
most solemn agreement to waive all his rights to such custody ("ADOPTION OF CHILDREN," 1925).
The article above also details a discussion
of a pre-emptive nature concerning objections to adoption legislation on the grounds of its legal severance of the common
law rights and responsibilities of parents:
on the ground that an order of adoption finally put an end to all the rights of
the natural parent to the adopted child, and poor persons might, conceivably, be compelled by straitened circumstances to
give up children, whom they would, but for poverty, be willing to keep. The answer to that objection was that there was little
likelihood that poor persons would avail themselves of the provisions of the measure in order to obtain proper maintenance
for their children. There was no need for such persons to do so, since under the State Children's Act or the Destitute Persons
Act, according to the circumstances of the case, there was adequate provision for ensuring the proper maintenance of any child
whose parents could not afford to keep it, and at the same time ensuring to the parent the right to take over the maintenance
of the child if at any time he or she became in a position to support it. Orders of adoption were only made with the consent
of the parents and after full enquiry, and no doubt the officiating Magistrate would advise any parent who merely wanted to
part with a child to secure its proper maintenance that there was no need to take the extreme step of having the child adopted
for that purpose ("ADOPTION OF CHILDREN," 1925).